Amber Dockery v. Dierbergs Markets Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 14-049534

**Employee:** Amber Dockery

**Employer:** Dierbergs Markets Inc.

**Insurer:** Self-insured

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge (ALJ).

The ALJ identified the following issues in dispute: (1) incidence of occupational disease; (2) occurrence of an accident/event; (3) whether injury arose out of and in the course of employment; (4) medical causation; (5) liability for past medical expenses of $51,804.40; (6) whether employer is liable for temporary total disability benefits for 12 4/7 weeks; and (7) liability of the employer for permanent partial disability.

The ALJ denied all compensation on a finding that the employee was not credible. He focused particularly on the employee's failure to report any work-related event when she saw Dr. Shawn Kutnik on July 2, 2014. The ALJ noted that the employee did not file a Report of Injury until July 10, 2014, when the results of an MRI revealed she had a torn rotator cuff. He found her testimony regarding the Report of Injury inconsistent. The ALJ found that notes of Drs. Kutnik and Sigmund and the testimony of Dr. Nogalski, a shoulder surgery specialist, more persuasive than the testimony of the employee and Dr. Schlafly, a hand surgery specialist. The ALJ concluded that the employee failed to satisfy her burden of proof that she suffered an accident or occupational disease.

The employee filed a timely application for review alleging the administrative law judge erred in that:

The judge's reliance on the testimony of Dr. Nogalski that the repetitive meat cutting duties the employer required the employee to perform for 16 plus years was not the prevailing cause of the employee's severe biceps tendonitis and rotator cuff tear is misplaced as Dr. Nogalski's opinions regarding causation lacked any substantial foundation, being based, not on any history of the employee's actual job duties, but solely on his observations of other unknown meat cutters he observed while stopping at a grocery store. The judge misstated the notes of the treating doctor, Dr. Sigmund [sic], whose findings were entirely consistent with occupational disease and gave no opinion on causation. The judge bases his conclusion on his belief that an opinion of a shoulder surgeon that is lacking substantial foundation should prevail over the opinion of an

Injury No.: 14-049534

Employee: Amber Dockery

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orthopedic surgeon that is based on the actual occupational exposure of the employee.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

The employee, sixty-five years old, began employment with employer's grocery store in 1994. After a training period, she began working at the meat counter in the store's deli department. The employee worked continuously in the same position for the entire course of her employment. She remained employed by employer at the time of hearing.

The employee's duties include "cut[ting] meat and cheese, wrapping, pricing, serving your customers, unpacking your loads, put[ing] your loads away, rotating product, making sure we have no waste [and] presentation." She is physically engaged in cutting meat and cheese for six to seven hours a day. All product is machine-sliced, and all machines in employer's deli department are right-handed. The employee's job involves moving her right arm forward and backwards all day long to cut slices of meat and cheese. She slices approximately three to four hundred slices each day to accommodate customers' varied preferences. The employee's job duties also involve lifting approximately forty to fifty-pound boxes of meat and cheese to place them on racks that vary in height from knee-high, breast high to an upper tier. She explained, "[O]n the highest rack you would have to actually lift the box up above your shoulders or up above your head in order to ... place the box in order to take the box down."

The employee first noticed a problem with her shoulder on July 1, 2014, during a busy meat sale day. She was cutting meat all day long to keep up with customers' demand for employer's sale-priced product. A six-wheeled tram arrived in employee's department stacked full of hams, turkeys and other product. In the process of trying to pull a ham box off the tram the employee felt pain in her shoulder. Assuming the pain was due to overexertion, she continued to perform her regular duties, including meat cutting. As the workday progressed, she noticed that her arm was getting weaker.

On July 2, 2014, the employee sought treatment at Premier Care. Dr. Kutnik's notes documenting the employee's office visit on that date state, in pertinent part:

> Ms. Dockery is a 61-year-old right hand-dominant female who has noted an inability since last week to really lift the right arm to any significant degree. The patient thinks she may have slept on it funny. She is really unable to lift it up out of the plane of the scapula. She denies any antecedent trauma or change in activity. She denies any numbness or tingling specifically to the hand or fingers. Of note, the patient has had a previous three-level fusion to the cervical spine.

1 Transcript, 7-8.

2 Id. 11.

3 Transcript, 71.

Injury No.: 14-049534

Employee: Amber Dockery

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The employee testified that when Dr. Kutnik examined her on July 2, 2014, "[W]e talked about ... the injury on my arm and how I felt and he looked into it." She explained she considers trauma "something really tragic" as distinguished from a pulling activity that left her with a feeling that something was wrong with her arm.

Dr. Kutnik ordered X-rays of the employee's right shoulder, which showed a right shoulder massive rotator cuff tear. At a follow up visit on July 10, 2014, subsequent to an MRI of the employee's right shoulder, Dr. Kutnik referred her to Dr. Sigmund for likely surgical intervention. That day, the employee told her manager "[T]hat I was pulling on a box and I had went to the doctor and I found out that I was injured." Employer's claims manager filed a Report of Injury dated July 10, 2014.

On July 24, 2014, the employer sent employee to Dr. Michael Nogalski for treatment. Dr. Nogalski diagnosed a right shoulder strain, chronic rotator cuff tear with degenerative disease glenohumeral joint and os acromiale. He authorized the employee to continue full duty work and prescribed physical therapy. The employee underwent six or seven physical therapy treatments, which provided little if any relief. After a follow up visit on August 13, 2014, Dr. Nogalski reiterated his opinion that the employee could work at a level of full duty and discharged her from his care.

On January 21, 2015, Dr. Robert Sigmund performed a right shoulder arthroscopy with retracted rotator cuff repair with biceps tendodesis as well as a decompression. After a course of physical therapy, Dr. Sigmund released the employee to return to work on April 18, 2015.

Since Dr. Sigmund's surgery, the employee has lost arm strength and experiences some cramping. However, she testified her shoulder works very well. She can still do her job, though she requires assistance from coworkers in order to lift anything overhead. Regarding her right arm, she stated, "I can do things with it. [For example] I can hold my coffee without spilling and I can lift smaller things at work."

Medical Evidence

Dr. Michael Nogalski

Employer produced the report and deposition of orthopedic surgeon Dr. Michael Nogalski. On July 24, 2014, Dr. Nogalski diagnosed the employee's condition as right shoulder strain, chronic rotator cuff tear with degenerative disease glenohumeral joint and os acromiale. He explained his findings as follows:

4 Id. 30.

5 Id.

6 Id. 16.

7 Employer/Insurer's Exhibit A, Transcript, 206.

8 Transcript, 59.

9 Id. 22.

Impry No.: 14-049534

Employee: Amber Dockery

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Her os acromiale is old and congenital. This does indeed predispose to rotator cuff tears. Her rotator cuff tear condition is old and has apparently been well compensated for over years of time. Her degenerative disease of the shoulder is possibly an isolated issue, but may relate to some cuff tear arthropathy in this setting. This also is an old condition.

In sum total, [i]t appears she sustained a strain to the shoulder and has fairly significant preexisting issues. Most of her findings suggest she has more of a glenohumeral issue than a neck problem, but she does have some symptoms that suggest the neck has a role in some of the generalized shoulder girdle and upper shoulder girdle problems.10

Dr. Nogalski considered physical therapy the employee's best option to minimize any effects of a shoulder strain and "help optimize the shoulder and get it back to solid function."11 He identified no findings that suggested an operation or surgery and recommended that the employee continue working full duty.

In a follow-up visit on August 13, 2014, Dr. Nogalski acknowledged that the employee's condition had not improved since she went to physical therapy. He noted she continued to suffer from diffuse symptoms and conceded that the employee "may well have sustained a strain to the shoulder."12 He recommended that the employee seek reevaluation by Dr. Shitut, the surgeon who performed her neck surgery for "probably cervical mediated symptoms."13 At this time, Dr. Nogalski reiterated his opinion that the prevailing factor for her current complaints was preexisting issues within the shoulder with possible overlay of some cervical issues. He again recommended that the employee work at a level of full duty and suggested she continue physical therapy exercises at home.

In his June 12, 2017, deposition, Dr. Nogalski acknowledged that the employee demonstrated less strength after the physical therapy he prescribed than before. However, he opined that her chronic conditions remained unchanged and stated he was unable to identify anything acute that a surgical procedure would help.

In his deposition, Dr. Nogalski further opined that the employee's job duties at Dierbergs did not place her at a reasonable risk of exposure for a rotator cuff tear or shoulder disorder. He testified that the employee's job duties did not represent the prevailing factor causing the employee's rotator-cuff tendinopathy, chronic tear, and severe biceps tendinitis and were not the prevailing factor necessitating treatment of the employee's shoulder or surgical intervention.

Dr. Nogalski had no knowledge of the weight of the slicing machine the employee used at work, how much force she was required to exert to push and pull the slicer for each cut, or the number of slices of meat and cheese the employee cut on a daily basis. He

10 Id. 93-94.

11 Transcript, 94.

12 Id. 97.

13 Id.

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Employee: Amber Dockery

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did not know how much total weight the employee lifted at work on a daily basis or how long she had worked in her position.

**Dr. Bruce Schlafly**

Dr. Bruce Schlafly examined the employee on February 2, 2016. Dr. Schlafly's April 26, 2017, deposition is included in the record.

Dr. Schlafly's primary diagnosis of the employee was torn rotator cuff of the right shoulder treated with rotator cuff repair, along with severe biceps tendonitis that required biceps tendon tenodesis at the shoulder.

He noted that the physical therapy ordered by Dr. Nogalski did not help the employee. He further noted that on November 14, 2014, Dr. Sigmund recommended surgery based on an MRI scan showing a rotator cuff tear at the right shoulder. Dr. Schlafly noted Dr. Sigmund's opinion that a rotator cuff tear was probably present prior to the employee's work injury, but that the employee had done something at work to exacerbate the problem or make the tear worse.

Dr. Schlafly testified that Dr. Sigmund's arthroscopic surgery on the employee's right shoulder on January 21, 2015, was reasonable and necessary to repair her large rotator cuff tear and tenodesis of a biceps tendon. He found that the employee was unable to work due to her right shoulder injury from January 21, 2015, through April 17, 2015. Dr. Schlafly further found that charges for the employee's examinations and treatment by Drs. Kutnik and Sigmund, physical therapy both before and after surgery, examinations, and surgery by Dr. Sigmund were reasonable and necessary.

Dr. Schlafly opined that the employee's repetitive work during her years as a meat cutter for Dierbergs, including her work on or about July 1, 2014, was the prevailing factor in the cause of her severe biceps tendonitis and torn rotator cuff at the right shoulder and in the need for surgical repairs. He noted, "She makes hundreds of slices of meat each day using her right hand and arm to operate the slicer. She also routinely lifts and carries heavy boxes of meat weighing 40-50 pounds."14 He stated:

> As noted by others, Mrs. Dockery probably had some tearing of the rotator cuff of her right shoulder prior to July 1, 2014, but repetitive use of the shoulder can cause gradual and progressive tearing of the rotator cuff, and symptoms may not develop until the tear reaches a certain point in size, when there is acute onset of pain with loss of range of motion, as occurred with Mrs. Dockery, in combination with her biceps tendonitis, which also developed due to repetitive use of her right arm at work as a meat cutter at Dierberg's [sic].15

14 Id. 172.

15 Id. 162-163.

Improve: Amber Dockery

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Dr. Schlafly concluded that the employee sustained 40 percent permanent partial disability of the right shoulder, due to repetitive use of the right shoulder at work, including the work injury of July 1, 2014. He cited no need for future medical treatment but recommended the employee avoid lifting and carrying more than 25 pounds, using both arms, and avoid overhead lifting of more than six pounds with her right arm alone.

**Law**

Section 287.067 RSMo provides:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

1. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

**Conclusions of Law**

Whether the employee contracted an occupational disease out of and in the course of her employment that originated in a risk connected with her employment and flowed from that source as a rational consequence.

The ALJ correctly notes that the employee failed to mention any trauma or work-related event when she contacted orthopedist Dr. Kutnik with complaints relating to her right arm on July 2, 2014, and did not report an injury until July 10, 2014, when Dr. Kutnik informed her that an MRI revealed a right rotator cuff tear.

Injury No.: 14-049534

Employee: Amber Dockery

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We do not dispute these findings. However, we note that nothing in the record contradicts the employee's testimony that for well over twenty years she was continuously engaged in full-time work involving repetitive motion consisting of moving her right arm forward and backward using a slicing machine to cut three hundred to four hundred slices of meat and cheese from six to seven hours a day. These job duties clearly exposed the employee to a greater risk of injury due to repetitive motion than the public. Section 287.067.3 expressly recognizes injury due to repetitive motion as an occupational disease for purposes of The Workers Compensation Law.

Based on the uncontroverted evidence regarding the employee's job duties and the credible expert opinion of Dr. Schlafly, we find that the employee's repetitive work during her years as a meat cutter for Dierbergs over a period of more than twenty years exposed her to the risk of repetitive motion occupational disease and was the prevailing factor in the cause of her severe biceps tendonitis and torn rotator cuff at the right shoulder, the need for surgical repairs and permanent partial disability resulting from this condition. We attribute less weight to Dr. Nogalski's opposite opinion, due to his admitted lack of information regarding the details of this employee's daily job duties. We note that Dr. Nogalski agrees the employee sustained a work-related injury and that he provided authorized treatment therefor. We are not persuaded that any congenital structural abnormality referable to employee's right shoulder would have caused the extensive, disabling pathology diagnosed herein but for the performance over many years of the repetitive work tasks described.

Liability for Past Medical

Section 287.140.1 RSMo provides, in relevant part, as follows:

> In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Employee's medical records, bills corresponding to the treatments described in the medical records, and testimony describing her course of treatment are included in the record.

At hearing, the employee and employer/insurer stipulated that employer's liability for unpaid medical in the amount of $51,804.40 was in dispute. On appeal, employer/insurer does not dispute the amount of employee's medical bills, but hinges its defense solely on the argument that the employee failed to satisfy her burden of proof in establishing the existence of a compensable accident or occupational disease. Employee's medical bills were admitted into evidence without objection. Dr. Schlafly testified that the bills submitted at hearing were reasonable and necessary for treatment related to her work related injury.

16 Transcript, 2.

Injury No.: 14-049534

Employee: Amber Dockery

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We find that employee incurred the medical treatment reasonably required to cure and relieve the effects of her work-related occupational disease from July 2, 2014, through April 17, 2015, in the amount of $51,804.40, and employer is liable therefor.

**Nature and Extent of Temporary Total Benefits**

Section 287.170 RSMo provides for the payment of temporary total disability benefits while an employee is engaged in the rehabilitative process following a compensable work injury. *Greer v. Sysco Food Servs., 475 S.W.3d 655 (Mo. 2015)*

At hearing, the parties stipulated that temporary total disability at the weekly rate of $376.58 for 12 4/7 weeks was in dispute.

Dr. Schlafly testified that the employee was unable to work due her right shoulder injury from January 21, 2015, the date of her rotator cuff surgery until April 18, 2015, and that such time for healing following the operation on the right shoulder was reasonable and appropriate. A work note dated April 10, 2015, from the employee's surgeon, Dr. Robert Sigmund, certified that the employee was under his care for an orthopedic condition and released her to return to work on April 18, 2015. We find the employee reached maximum medical improvement as of her release to return to work on April 18, 2015, and that, pursuant to the parties stipulation, employer is liable for temporary total benefits for 12 4/7 weeks beginning January 21, 2015.

**Nature and Extent of Permanent Partial Disability**

We find that the employee sustained disability attributable to repetitive use of her right shoulder at work consisting of 35% permanent partial disability of the right shoulder, rated at the 232 week level (81.2 weeks). In so finding, we rely on Dr. Schlafly's evaluation of the employee's work related disability. We note there are no other medical evaluations of the employee's permanent partial disability in the record.

**Award**

We reverse the award of the administrative law judge. We conclude that employee suffered a compensable injury due to repetitive motion arising out of and in the course of her employment on or about July 1, 2014, pursuant to § 287.067.3 RSMo.

Employer shall pay to employee $51,804.40 for her past medical expenses. Employer is obligated to pay 12 4/7 weekly payments of temporary total disability benefits beginning January 21, 2015, until April 18, 2015, at the stipulated temporary total disability benefit rate of $376.58.

Thereafter, the employer is liable to employee for permanent partial disability benefits in the amount of $376.58 for 81.2 weeks.

This award is subject to a lien in favor of Kurt C. Hoener, Attorney at Law, in the amount of 25% for necessary legal services rendered.

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Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued October 3, 2017, is attached solely for reference.

Given at Jefferson City, State of Missouri, this 7th day of June 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Amber Dockery

I did not participate in the April 11, 2018, oral argument in this matter, held prior to my appointment to the Commission. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. I have reviewed and considered all of the competent and substantial evidence on the whole record.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Amber Dockery

Injury No.: 14-049534

Dependents: N/A

Before the

Director: Dierbergs Markets Inc.

Division of Workers' Compensation

Department of Labor and

Industrial Relations

N/A

Of Missouri

Additional Party: N/A

Insurer: Self c/o CCMI

Jefferson City, Missouri

Hearing Date: July 17, 2017

Checked by: JPK

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: 7/1/2014 (alleged)

1. State location where accident occurred or occupational disease was contracted: St. Louis

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee felt a burning sensation in her right shoulder when she lifted a box containing two hams. (alleged)

1. Did accident or occupational disease cause death? N/A

1. Part(s) of body injured by accident or occupational disease: N/A

1. Nature and extent of any permanent disability: N/A

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? $991.75

Revised Form 21 (3/97)

Page 1

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

On July 17, 2017, the parties appeared for a hearing. Amber Dockery ("Claimant") appeared in person and with counsel, Kurt C. Hoener. The Employer/Insurer, Dierbergs Markets, Inc., was represented by David Kowert.

1. The Employer, Dierbergs Markets, Inc., was operating subject to Missouri's Workers' Compensation Law on or about July 1, 2014.
2. Amber Dockery was its employee at all times herein.
3. The Employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed.
4. St. Louis, Missouri is the proper venue.
5. Employee's average weekly wage is 564.87
6. Applicable rates of compensation are 376.58 for TTD and 376.58 for PPD.
7. Employer paid 991.75 in medical expenses and zero in TTD benefits.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1. Medical records of Premier Care/Signature Medical Group (Dr. Shawn Kutnik and Dr. Robert Sigmund) (7/2/14 - 4/10/15)
2. Itemized statement ($22,429.00) of Premier Care/Signature Medical Group (Dr. Robert Sigmund) (11/14/14 - 4/10/15)
3. Itemized statement ($23,725.00) of Old Tesson Surgery Center (1/21/15)
4. Itemized statement ($2,290.40) of South County Anesthesia (1/21/15)
5. Medical records of Orthopedic Associates (Dr. Michael Nogalski) (7/24/14 & 8/13/14)
6. Physical therapy records of The Work Center (7/28/14 - 8/11/14)
7. Physical therapy records of St. Anthony's Medical Center (3/18/15 - 4/10/15)
8. Itemized statement ($996.00) of St. Anthony's Medical Center

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 14-049534

9) Report of Dr. Bruce Schlafly dated 2/2/16

10) Deposition of Dr. Bruce Schlafly dated 4/26/17

Employer/Insurer introduced, and had admitted into evidence, the following Exhibits:

A) Report of Injury

B) Deposition of Dr. Michael Nogalski dated 6/12/17

C) Deposition of Amber Dockery dated 11/6/14

ISSUES

1) Whether the employee suffered occupational injuries to her right shoulder.

2) Whether the employee suffered an accident.

3) Whether the injury arose out of and in the course of employment.

4) Medical causation.

5) Employer's liability of past medical expenses of: $51,804.40.

6) Employer's liability for temporary total disability for a period of 12 4/7 weeks.

7) Employer's liability for permanent partial disability.

FINDINGS OF FACT

At the time of the hearing, claimant was 64 years old. She began working for the employer in 1994 as a deli meat cutter/cheese slicer, a position which she has maintained to the present. Her job duties included waiting on customers, serving deli products and prepared foods, cleaning her work area, operating a meat slicer, rotating product and stocking the display case with product.

Claimant testified that her job required some lifting of boxes weighing up to 50 pounds. She described the use of a slicer as primarily moving the slicer back and forth to slice meats and cheeses. She estimated that in an average day she would produce between 300 and 400 slices of various meats and cheeses.

Claimant testified that while moving a box of hams, she experienced an onset of pain in her right shoulder. In her deposition dated November 6, 2014, she testified "all of a sudden my arm started hurting." She explained it was "in the shoulder" and it was like "something popped and fire started." (Exhibit C, page 15.)

Claimant had undergone a surgical procedure on her neck in 2012. She testified that she was concerned that she might have aggravated this preexisting condition. On July 2, 2014, the day after the alleged accident, she went to Premier Care Orthopedics where the neck procedure had been performed. She was evaluated by Dr. Shawn Kutnik. The report from Dr. Kutnik indicates:

"Ms. Dockery is a 61 year old right hand dominant female who has noted an inability since last week to really lift the right arm to any significant degree. The patient thinks she may have slept on it funny. She is really unable to lift it up out of the plane of the scapula. She denies any antecedent trauma or change in activity. She denies any numbness or tingling specifically to the hand or fingers. Of note, the patient has had a previous three-level fusion to

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-049534

the cervical spine. She additionally has occasional pain to the right long finger, specifically over the PIP joint, which is worse with activity."

Dr. Kutnik recommended an MRI which was performed on July 8, 2014. This confirmed a full-thickness rotator cuff tear. Dr. Kutnik advised the claimant that she would likely need surgery. As Dr. Kutnik did not perform this type of procedure, he referred her to Dr. Robert Sigmund, a shoulder specialist, on July 10, 2014.

After learning of the diagnosis, claimant reported the injury to Dierbergs Markets on July 10, 2014 when the Report of Injury was completed. Upon receiving notice of the injury, employer sent claimant to Dr. Nogalski for an evaluation. The doctor examined the claimant on July 24, 2014. X-rays were taken and revealed an osteophyte and changes of the acromion "suggestive of chronic rotator cuff tear and arthropathy" as well as the presence of an os acromiale. The doctor stated the os acromiale was old and congenital. He felt the tear was old and the injury was a strain of the shoulder. He recommended physical therapy. When claimant returned on August 13, 2014, she complained that the therapy was ineffective. Dr. Nogalski continued to feel the condition was chronic and discharged the claimant from care.

On November 14, 2014, Dr. Sigmund's assessment was:

"She does need an attempt to try to repair this and she understands. I have explained to her that I believe her rotator cuff tear was probably preexisting and she did something at work to exacerbate the problem or extend the tear. It is difficult to say but certainly the date of her injury and the MRI are close and the changes that we see look chronic." Dr. Sigmund performed surgery on January 21, 2015. Following surgery, the claimant underwent a course of physical therapy and was released by the doctor on April 10, 2015.

Claimant testified that the shoulder surgery performed by Dr. Sigmund provided her with substantial relief, increasing her range of motion, and reducing her pain. She still has some weakness in the shoulder and she tires easily. She takes hydrocodone for her neck and shoulder pain and uses ice on the shoulder to get relief.

Opinion Evidence

Dr. Bruce Schlafly

Claimant offered the Independent Medical Evaluation of Dr. Bruce Schlafly (Exhibit 10). Dr. Schlafly is board certified in orthopedic surgery and hand surgery. He examined Ms. Dockery on February 2, 2016. He issued a report on February 2, 2016. It is Dr. Schlafly's opinion that claimant's repetitive work during her years as a meat cutter is the prevailing factor in the cause of the severe biceps tendonitis and torn rotator cuff at the right shoulder. He noted that repetitive use of the shoulder can cause gradual and progressive tearing of the rotator cuff, and symptoms may not develop until the tear reaches a certain point in size.

Dr. Schlafly placed claimant at 40 percent permanent partial disability of the right shoulder, due to repetitive use of the right shoulder at work, including the work injury of July 1, 2014.

WC-32-011 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 14-049534

Dr. Michael Nogalski

Employer/Insurer offered the deposition of Dr. Michael Nogalski (Exhibit B). Dr. Nogalski is a board certified orthopedic surgeon. Dr. Nogalski stated, "I reviewed x-rays and an MRI. X-rays of the right shoulder done on 7/2/14 at Premier Care South showed a slight high-riding humeral head, inferior humeral osteophyte or bone spur, and some secondary changes of the acromion, suggestive of a chronic rotator-cuff tear and arthropathy, as well as an os acromiale, which is a nonunion or unfused acromion or roof of shoulder." He stated that the MRI showed "a retracted supraspinatus tear beyond the humeral head with the os acromiale. There were some reactive degenerative changes around the acromioclavicular joint consistent with the os acromiale, which is right next to the AC joint itself. There did not appear to be any acute-trauma finding. There were degenerative changes as well of the glenohumeral joint and narrowing of the glenohumeral joint, which would be consistent with degeneration. And there were some bone marrow signal changes in the bone below the degenerative region." He believed the MRI showed some fatty atrophy, which supports a longstanding problem in the shoulder. Finally, the rotator cuff tear itself appeared to be old and appeared to be well-compensated for over years of time, especially given her exam findings with relatively solid strength around the rotator cuff tests. He did not believe Ms. Dockery's job duties at Dierbergs represented the prevailing factor causing rotator cuff tendinopathy, chronic tear, and severe biceps tendonitis. Additionally, he didn't believe the event on July 1, 2014 would be the prevailing factor and need for treatment nor did he believe that the repetitive nature of using an electric meat slicer placed claimant at a reasonable risk for a rotator cuff tear or for a shoulder disorder.

RULINGS OF LAW

Medical Causation

Section 287.020 provides:

1. The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

1. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-049534

Occupational injuries to claimant's right shoulder

Section 287.067.3 RSMO states:

An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

The claimant has the burden to prove all essential elements of the claim, including a causal connection between the injury and the job. *Royal v. Advantica Restaurant Group, Inc.*, 194 S.W.3d 371, 376(Mo.App.W.D.2006).

"[T]he question of causation is one of medical testimony, without which a finding for claimant would be based upon mere conjecture and speculation and not on substantial evidence." *Elliot v. Kansas City, Missouri School District*, 71 S.W.3d 652, 658 (Mo.App. W.D. 2002).

Claimant testified that she injured her right shoulder while lifting a box containing two hams on July 1, 2014. She went to Premier Care on July 2, 2014, the day after the alleged accident, because she was concerned that she may have reinjured her neck and Premier Care treated her neck in 2012. During her examination with Dr. Shawn Kutnik, claimant noted an inability since last week to really lift the right arm to any significant degree. She denied any antecedent trauma or change in activity and said that she thought she had "slept on it funny." Dr. Sigmund, the treating physician, had in his notes that he told claimant that he thought that her condition was probably preexisting and the condition looked chronic. He stated that she may have exacerbated the preexisting condition at work. Dr. Schlafly indicated the claimant's "repetitive work as a meat cutter at Dierbergs, including her work on July 1, 2014," was the prevailing factor in causing her condition and the need for medical repairs. Dr. Nogalski thought the right shoulder had chronic, degenerative conditions. He did not believe the repetitive nature of using a meat slicer placed claimant at a reasonable risk for a shoulder disorder and there was no ergonomic evidence presented to the contrary.

Claimant's testimony is inconsistent regarding the Report of Injury. Dr. Kutnik examined her the day following the alleged accident. Claimant never informed him of lifting the box of hams as the cause of hurting her shoulder. Quite to the contrary, claimant informed Dr. Kutnick that she "slept on it funny" and that she had been unable to raise her arm since "last week." Claimant did not inform anyone of the incident that she professes hurt her shoulder until the results of the MRI revealed a torn rotator cuff on July 10, 2014. It was only then that she filed the Report of Injury. Dr. Sigmund is the treating physician. Dr. Kutnik referred the claimant to Dr. Sigmund because shoulder surgery was his specialty. Dr. Nogalski also specializes his practice in shoulder surgery. Dr. Schlafly testified that he specializes in hand surgery and has not performed a shoulder surgery in more than 30 years. I find the notes of Drs.

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Kutnik and Sigmund along with the testimony of Dr. Nogalski to be more persuasive than the testimony of claimant and Dr. Schlafly.

The claimant has failed to satisfy her burden of proof that she suffered an accident or occupational injuries. The claimant's history, as presented, is not credible. There are a number of inconsistencies in her deposition and testimony. The records of Drs. Kutnik and Sigmund and the testimony of Dr. Nogalski are more persuasive than the testimony of Dr. Schlafly. As claimant has failed to satisfy her burden of proof of accident or occupational injury, all of the other issues are moot. This claim is denied and no compensation is awarded.

I certify that on 10-3-17

I delivered a copy of the foregoing award to the parins to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.


Made by: $\square$ Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation